Esidakeni Farm court application challenged

LANDS, Agriculture, Fisheries, Water and Rural Development Minister Anxious Masuka is challenging a court application by Zephaniah Dhlamini and his business partners Siphosami Malunga, Charles Moyo and Kershelmar Farms (Pvt) Ltd who are seeking nullification of the gazetting of Esidakeni Farm.

The property was compulsorily acquired by Government in terms of the Gazetted Lands (Consequential Provisions) Act in December 2020.

In their application, through their lawyer Mr Josphat Tshuma of Webb, Low and Barry Legal Practitioners Dhlamini, Malunga, Moyo and Kershelmar Farms are seeking an order declaring the acquisition of Esidakeni null and void.

They cited Lands, Agriculture, Fisheries, Water and Rural Resettlement Minister Anxious Masuka, Matabeleland North Provincial Affairs Minister Richard Moyo, the provincial chief lands officer, Registrar of Deeds, Mr Mpofu and Madzivanyathi as respondents.

In his opposing affidavit, through his lawyer, Ms Julian Mugova of Titan Law, Minister Masuka, argued that the applicants have no locus standi to institute the proceedings on the grounds that they do not have an offer letter.

The minister said the application is a classic case of abuse of the court process. Dr Masuka contended that the applicants are not lawful owners of the farm.

"The applicants' locus standi on acquisition issues would be established through a direct link to the land which in this particular case has not been established. The relief that the applicants are seeking cannot be granted in their favour," he argued.

Dr Masuka said his ministry is guided by Section 72 of the Constitution when acquiring land and Section 289 when it comes to land policy.

"The land in question is State land and does not belong to the applicants. In addition to this the applicants miss one critical point when it comes to dealing with land acquisition issues," he said.

Dr Masuka said the applicants are not the rightful owners and holders of title deeds of Kershelmar Farm. He said the applicants did not attach proof of investment in the farm.

He said the acquisition process is governed and provided for in terms of Section 72 of the Constitution, which stipulates that once a piece of land is gazetted, it immediately becomes State land.

"This process cannot be challenged through the courts. The question that then arises is in terms of what law or legal provision is this application? Clearly, the applicants are way out of depth in terms of the appreciation of land laws and their application," he said.

"The relief they seek is baseless both at law and on the facts and cannot be granted."

Minister Masuka said the applicants have not exhausted the internal remedies provided in terms of the Constitution and the Land Commission Act.

"It is trite that one ought to approach the courts after exhausting all the internal remedies. The applicants, in this case, have not followed due procedure and this application simply amounts to forum shopping and is a classic case of abuse of court process hence the matter must be dismissed," he said.

Dr Masuka said the High Court has no jurisdiction to hear this matter. He said there is no provision at law for the nullification of a proper and lawful acquisition of agricultural land whose acquisition is in terms of Section 72 of the Constitution.

"The alternative relief that the applicants may pursue if indeed they owned the land at the time of acquisition is either restoration of title or compensation, which is the laid down procedure in terms of Statutory Instrument 62 of 2020 which was duly gazetted," he said.

"The Statutory Instrument provides procedures to be followed if one is an indigenous person in the event that his or her land would have been acquired. In the present domestic remedies, this application must be dismissed with the matter on the merits."